In December 2014, the defendant Tony Rugari was charged with common assault over an incident where he allegedly attacked a facilitator during a supervised visit with his son.

The matter proceeded to hearing in Liverpool Local Court in May 2015, where he was allegedly observed writing “go on 2 winess proteshen” [sic] next to the listing for his case on the public court list. A police officer allegedly observed the alleged threat, and Mr Rugari was arrested at court and taken to nearby Liverpool Police Station to be charged.

The police prosecutor became aware of the arrest and made an application before Magistrate Roger Prowse to adjourn the hearing, which was agreed to by the defence. However, the Magistrate insisted that the defendant be “unarrested” so the assault hearing could proceed, and quickly refused the adjournment application without hearing submissions from the parties.

The Magistrate then withdrew his refusal, heard submissions, then once again refused the adjournment.

His Honour considered the defendant’s arrest as an “affront to the Court’s business”, finding that “the only option left to the court… is to proceed with the stay”; in other words, to permanently adjourn the case so it is never heard.

He commented:

“… there is a clear power in the Court to stay the proceedings. There is a clear power in the Court to take action to prevent the processes as being abused or thwarted by way an abuse can be perpetuated by the thwarting of the business of the Court being disposed of properly”.

Anticipating an appeal, His Honour then condescendingly asked the prosecutor:

“Do you want me to order a transcript of that so that when you pop off to the Supreme Court it has already been prepared?”

On Appeal

The DPP indeed appealed to the Supreme Court, where Justice Wilson was scathing in her criticism of the Magistrate’s understanding of the law, his findings and his overall conduct.

Her Honour found the Magistrate had clearly denied procedural fairness to the prosecution by refusing to adjourn the proceedings and issuing a permanent stay – but it didn’t end there.

She was not impressed by the Magistrate’s comment that “… to arrest somebody in the precincts of the Court is actually a contempt of court”, stating:

“… it is apparent that the miscarriage of justice that occurred was precipitated by the Magistrate’s mistaken understanding of the principals [sic] of contempt of court. Everything that followed flowed from that mistake”.

Wilson pointed-out that a privilege against arrest does not arise by virtue of the fact that a person is attending court for a hearing, and that any such privilege would lead to the absurd situation where witnesses could commit offences while at court with impunity.

Her Honour described the Magistrate’s view (that arresting a person at court amounts to contempt) as an “… erroneous assumption that led to the Magistrate’s apparent, although wholly misplaced, irritation with the police and, by extension, his irritation with the police prosecutor…”.

She formed the view that “[h]is intent seems to have been to punish the prosecution for what he regarded as contemptuous interference in the Court’s processes by the police”.

She then outlined authorities which clearly establish that stays of proceedings are only to be granted in the most exceptional of circumstances – as to do otherwise would reduce public confidence in the legal system.

On that subject, Her Honour proceeded to state that:

“the maintenance of public confidence in the criminal justice system… is not served by a judicial officer acting in a peremptory and injudicious manner, intending to punish a party which had irritated him, as I am satisfied occurred here… [and that His Honour’s]approach to the exceptional power of granting a permanent stay of a criminal prosecution bespeaks clear and fundamental error”.

But it didn’t end there either.

Her Honour was incensed by the Magistrate’s remark:

“The Court’s business is not to be just treated lightly, even though this is only the Local Court. It nevertheless is still a court dealing with matters of varying severity and seriousness”.

She noted that the line under the word “only” was in the original transcript, assuming it was therefore added by the Magistrate.

Her Honour was at pains to emphasise the importance of the Local Court, saying its role “cannot be overstated”. She noted that the Local Court has an “expansive and vital role to play in the discharge of its functions”, that the “vast majority of citizens” who come into contact with the justice system do so through that jurisdiction, that it deals with cases from the trivial to the most serious, and that it is to be treated with “unreserved respect”.

In the result, Mr Rugari’s matters were referred back to Liverpool Local Court for hearing before a different Magistrate.